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ARTICLE 21 - THE CROWN OF INDIAN CONSTITUTION
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ARTICLE 21
– THE CROWN OF INDIAN CONSTITUTION
AUTHORED BY - KUMAR KANISHK
Introduction
Right to life and personal liberty is
an essential part of human life. In its wider connotation, it includes all the
basic necessities of life without which one could not even survive. Article 21 (and
its many interpretations) is the perfect example of the transformative
character of the Constitution of India. The Indian judiciary has attributed
wider connotation and meaning to Article 21, extending beyond the Constitution
makers’ imagination. These meanings derived from the ‘right to life’ present
unique complexities. It is impossible to understand the expansive jurisprudence
on Article 21 within the length of this piece. Article 21 is at the heart of
the Constitution. It is the most organic and progressive provision in our
living Constitution. Article 21 can only be claimed when a person is deprived
of his ‘life or ‘personal liberty’ by the ‘State’ as defined in Article 12.
Thus, violation of the right by private individuals is not within the preview
of Article 21.
Article 21 of the Indian
Constitution
Article 21 of the Constitution of
India, 1950 provides,
21. Protection of life and personal
liberty.—No person shall be deprived of his life or personal liberty except
according to procedure established by law.
[21A. Right to education.—The State
shall provide free and compulsory education to all children of the age of six
to fourteen years in such manner as the State may, by law, determine.]
Article 21 secures two rights:
1)
Right to life, and
2) Right to personal liberty.
It prohibits the deprivation of the
above rights except according to a procedure established by law. Article 21
corresponds to the Magna Carta of 1215, the Fifth Amendment to the American
Constitution, Article 40(4) of Eire 1937, and Article XXXI of the Constitution
of Japan, 1946. It is also fundamental to democracy as it extends to natural
persons and not just citizens. The right is available to every person, citizen
or alien. Thus, even a foreigner can claim this right. It, however, does not
entitle a foreigner to the right to reside and settle in India, as mentioned in
Article 19 (1) (e).
Meaning, Concept And Interpretation
Of ‘Right To
Life’ Under Article 21
‘Everyone has the right to life,
liberty and the security of person.’
The right to life is undoubtedly the
most fundamental of all rights. All other rights add quality to the life in
question and depend on the pre-existence of life itself for their operation. As
human rights can only attach to living beings, one might expect the right to
life itself to be in some sense primary since none of the other rights would
have any value or utility without it. There would have been no Fundamental
Rights worth mentioning if Article 21 had been interpreted in its original
sense. This Section will examine the right to life as interpreted and applied
by the Supreme Court of India.
Article 21 of the Constitution of
India, 1950 provides,
“No person shall be deprived of his
life or personal liberty except according to procedure established by law.”
‘Life’ in Article 21 of the
Constitution is not merely the physical act of breathing. It does not connote
mere animal existence or continued drudgery through life. It has a much wider,
including, including the right to live with human dignity, Right to livelihood,
Right to health, Right to pollution-free air, etc.
The right to life is fundamental to
our very existence, without which we cannot live as human beings and includes
all those aspects of life, which make a man’s life meaningful, complete, and worth
living. It is the only Article in the Constitution that has received the
broadest possible interpretation. Thus, the bare necessities, minimum and basic
requirements for a person from the core concept of the right to life.
In Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted
and held:
By the term ‘life’ as here used,
something more is meant than mere animal existence. The inhibition against its
deprivation extends to all those limbs and faculties by which life is enjoyed.
The provision equally prohibits the mutilation of the body by amputation of an
armoured leg or the pulling out of an eye, or the destruction of any other
organ of the body through which the soul communicates with the outer world.
In Sunil Batra v. Delhi Administration, the Supreme Court approved the
above observations. It held that the ‘right to life’ included the right to lead
a healthy life to enjoy all faculties of the human body in their prime
conditions. It would even include the right to protect a person’s tradition,
culture, heritage and all that gives meaning to a man’s life. In addition, it
consists of the Right to live and sleep in peace and the Right to repose and
health.
Right To Live with Human Dignity
In Maneka Gandhi v. Union of India, the Supreme Court gave a new
dimension to Art. 21. The Court held that the right to live is not merely a
physical right but includes within its ambit the right to live with human
dignity. Elaborating the same view, the Court in Francis Coralie v. Union Territory of Delhi observed:
“The right to live includes the right
to live with human dignity and all that goes along with it, viz., the bare
necessities of life such as adequate nutrition, clothing and shelter over the
head and facilities for reading writing and expressing oneself in diverse
forms, freely moving about and mixing and mingling with fellow human beings and
must include the right to basic necessities the basic necessities of life and
also the right to carry on functions and activities as constitute the bare
minimum expression of human self.”
Right To Live with Human Dignity
In Maneka Gandhi v. Union of India, the Supreme Court gave a new
dimension to Art. 21. The Court held that the right to live is not merely a
physical right but includes within its ambit the right to live with human
dignity. Elaborating the same view, the Court in Francis Coralie v. Union Territory of Delhi observed:
“The right to live includes the right
to live with human dignity and all that goes along with it, viz., the bare
necessities of life such as adequate nutrition, clothing and shelter over the
head and facilities for reading writing and expressing oneself in diverse
forms, freely moving about and mixing and mingling with fellow human beings and
must include the right to basic necessities the basic necessities of life and
also the right to carry on functions and activities as constitute the bare
minimum expression of human self.”
Another broad formulation of life to
dignity is found in Bandhua Mukti Morcha
v. Union of India. Characterising Art. 21 as the heart of fundamental
rights, the Court gave it an expanded interpretation. Bhagwati J. observed:
“It is the fundamental right of
everyone in this country… to live with human dignity free from exploitation.
This right to live with human dignity enshrined in Article 21 derives its life
breath from the Directive Principles of State Policy and particularly clauses
(e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore,
it must include protection of the health and strength of workers, men and
women, and of the tender age of children against abuse, opportunities and
facilities for children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane conditions of work
and maternity relief.
“These are the minimum requirements
which must exist in order to enable a person to live with human dignity and no
State neither the Central Government nor any State Government-has the right to
take any action which will deprive a person of the enjoyment of these basic
essentials.”
Following the above-stated cases, the
Supreme Court in Peoples Union for Democratic
Rights v. Union of India, held that non-payment of minimum wages to the
workers employed in various Asiad Projects in Delhi was a denial to them of
their right to live with basic human dignity and violative of Article 21 of the
Constitution.
Bhagwati J. held that rights and
benefits conferred on workmen employed by a contractor under various labour
laws are intended to ensure basic human dignity to workers. He held that the
non-implementation by the private contractors engaged for constructing a
building for holding Asian Games in Delhi, and non-enforcement of these laws by
the State Authorities of the provisions of these laws was held to be violative
of the fundamental right of workers to live with human dignity contained in
Art. 21.
In Chandra Raja Kumar v. Police Commissioner Hyderabad, it has been
held that the right to life includes the right to live with human dignity and
decency. Therefore, keeping of beauty contest is repugnant to the dignity or
decency of women and offends Article 21 of the Constitution only if the same is
grossly indecent, scurrilous, obscene or intended for blackmailing. Therefore,
the government is empowered to prohibit the contest as objectionable
performance under Section 3 of the Andhra Pradesh Objectionable Performances
Prohibition Act, 1956.
Right Against Sexual Harassment at
Workplace
Sexual harassment of women has been
held by the Supreme Court to be violative of the most cherished of the
fundamental rights, namely, the Right to Life contained in Art. 21.
“The meaning and content of the
fundamental rights guaranteed in the Constitution of India are of sufficient
amplitude to compass all the facets of gender equality including prevention of
sexual harassment or abuse. “The above statement by Justice Verma in the famous
Vishakha judgment liberalised the understanding of Article 21. Therefore,
making it even more emancipatory.
In Vishakha v. State of Rajasthan, the Supreme Court declared sexual
harassment at the workplace to violate the right to equality, life and liberty.
Therefore, a violation of Articles 14, 15 and 21 of the Constitution. In this case, in the absence of a relevant
law against sexual harassment, the Supreme Court laid down the following
guidelines to ensure gender parity in the workplace: This meant that all
employers or persons in charge of the workplace, whether in the public or
private sector, should take appropriate steps to prevent sexual harassment.
Express prohibition of sexual
harassment as defined above at the workplace should be notified, published and
circulated inappropriate ways.
The Rules/Regulations of Government
and Public Sector bodies relating to conduct and discipline should include
rules/regulations prohibiting sexual harassment and provide for appropriate
penalties in such rules against the offender.
As regards private employers steps
should be taken to include the prohibitions above in the standing orders under
the Industrial Employment (Standing Orders) Act, 1946.
Appropriate work conditions should be
provided for work, leisure, health, and hygiene to ensure that there is no
hostile environment towards women at workplaces. No employee woman should have
reasonable grounds to believe that she is disadvantaged in connection with her
employment.
Where such conduct amounts to
specific offences under IPC or under any other law, the employer shall initiate
appropriate action by making a complaint with the appropriate authority.
The victims of Sexual harassment
should have the option to seek the transfer of the perpetrator or their own
transfer.
In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court
reiterated the Vishakha ruling and observed that:
“There is no gainsaying that each
incident of sexual harassment, at the place of work, results in the violation
of the Fundamental Right to Gender Equality and the Right to Life and Liberty
the two most precious Fundamental Rights guaranteed by the Constitution of
India….
“In our opinion, the contents of the
fundamental rights guaranteed in our Constitution are of sufficient amplitude
to encompass all facets of gender equality, including prevention of sexual
harassment and abuse and the courts are under a constitutional obligation to
protect and preserve those fundamental rights. That sexual harassment of a
female at the place of work is incompatible with the dignity and honour of a
female and needs to be eliminated….”
Understanding Article 21 Through Against
Sexual
Assault and Rape
Rape has been held to be a violation
of a person’s fundamental life guaranteed under Article 21. Therefore, the
right to life would include all those aspects of life that go on to make life
meaningful, complete and worth living.
In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court
observed:
“Rape is thus not only a crime
against the person of a woman (victim), it is a crime against the entire
society. It destroys the entire psychology of a woman and pushed her into deep
emotional crises. It is only by her sheer will power that she rehabilitates
herself in the society, which, on coming to know of the rape, looks down upon
her in derision and contempt. Rape is, therefore, the most hated crime. It is a
crime against basic human rights and is also violative of the victim’s most
cherished of the fundamental rights, namely, the right to life with human
dignity contained in Art 21”.
Right to Reputation and Article 21
Reputation is an essential part of
one’s life. It is one of the finer graces of human civilisation that makes life
worth living. The Supreme Court referred to D.F. Marion v. Minnie Davis in Smt.
Kiran Bedi v. Committee of Inquiry. It said:
“good reputation was an element of
personal security and was protected by the Constitution, equally with the right
to the enjoyment of life, liberty, and property. The Court affirmed that the
right to enjoyment of life, liberty, and property. The Court affirmed that the
right to enjoyment of private reputation was of ancient origin and was
necessary to human society.”
The same American decision has also
been referred to in State of Maharashtra
v. Public Concern of Governance Trust. The Court held that good reputation
was an element of personal security and was protected by the Constitution,
equally with the right to enjoy life, liberty and property.
It has been held that the right
equally covers a person’s reputation during and after his death. Thus, any
wrong action of the state or agencies that sullies the reputation of a virtuous
person would undoubtedly come under the scope of Article 21.
State of UP v. Mohammaad Naim succinctly laid down the following tests while dealing the
question of expunction of disgracing remarks against a person or authority
whose conduct comes in consideration before a court of law. These are:
Whether the party whose conduct is in
question is before the Court or has an opportunity of explaining or defending
himself.
Whether there is evidence on record
bearing on that conduct justifying the remarks.
Whether it is necessary for the
decision of the case, as an integral part thereof, to animadvert on that
conduct, it has also been recognised that judicial pronouncements must be
judicial. It should not normally depart from sobriety, moderation, and reserve.
In State of Bihar v. Lal Krishna Advani, a two-member commission got appointed to inquire
into the communal disturbances in the Bhagalpur district on October 24, 1989.
The commission made certain remarks in the report, which impinged upon the
respondent’s reputation as a public man without allowing him to be heard. The
Apex Court ruled that it was amply clear that one was entitled to have and
preserve one’s reputation, and one also had the right to protect it.
The Court further said that if any
authority, in the discharge of its duties fastened upon it under the law,
transverse into the realm of personal reputation adversely affecting him, it
must provide a chance to have his say in the matter. Finally, the Court
observed that the principle of natural justice made it incumbent upon the
authority to allow the person before any comment was made or opinion was
expressed, likely to affect that person prejudicially.
Right To Livelihood
To begin with, the Supreme Court took
the view that the right to life in Art. 21 would not include the right to
livelihood. In Re Sant Ram, a case arose before the Maneka Gandhi case, where
the Supreme Court ruled that the right to livelihood would not fall within the
expression ‘life’ in Article 21. The Court said curtly:
“The Right to livelihood would be
included in the freedoms enumerated in Art.19, or even in Art.16, in a limited
sense. But the language of Art.21 cannot be pressed into aid of the argument
that the word ‘life’ in Art. 21 includes ‘livelihood’ also.” But then the view
changed. The definition of the word ‘life’ in Article 21 was read broadly. The
Court, in Board of Trustees of the Port
of Bombay v. Dilipkumar Raghavendranath Nandkarni, came to hold that ‘the
right to life’ guaranteed by Article 21 includes ‘the right to livelihood’.
The Olga Tellis v. Bombay Municipal Corporation, popularly known as the
‘Pavement Dwellers Case’, is important. Herein, a five-judge bench of the Court
implied that the right to livelihood is borne out of the right to life. It said
so as no person can live without the means of living, that is, the means of
livelihood. The Court further observed:
“The sweep of the right to life
conferred by Art.21 is wide and far-reaching. It does not mean, merely that
life cannot be extinguished or taken away as, for example, by the imposition
and execution of death sentence, except according to procedure established by
law. That is but one aspect of the right to life. An equally important facet of
the right to life is the right to livelihood because no person can live without
the means of livelihood.”
If the right to livelihood is not
treated as part and parcel of the constitutional right to life, the easiest way
of depriving a person of his right to life would be to deprive him of his means
of livelihood to the point of abrogation.
In the instant case, the Court
further opined:
“The state may not by affirmative
action, be compelled to provide adequate means of livelihood or work to the
citizens. But, any person who is deprived of his right to livelihood except
according to just and fair procedure established by law can challenge the
deprivation as offending the right to life conferred in Article 21.”
Emphasising upon the close relationship
of life and livelihood, the Court stated:
“That, which alone makes it
impossible to live, leave aside what makes life livable, must be deemed to be
an integral part of the right to life. Deprive a person from his right to
livelihood and you shall have deprived him of his life.”
Article 21 does not place an absolute
embargo on the deprivation of life or personal liberty and, for that matter, on
the right to livelihood. What Article 21 insists is that such lack ought to be
according to procedure established by law which must be fair, just and
reasonable. Therefore, anyone deprived of the right to livelihood without a
just and fair procedure set by law can challenge such deprivation as being
against Article 21 and get it declared void.
In DTC v. DTC Mazdoor Congress, the Court was hearing a matter where
an employee was laid off by issuing a notice without any reason. The Court held
that the same was utterly arbitrary and violative of Article 21.
In M. Paul Anthony v. Bihar Gold Mines Ltd, it was held that when a
government servant or one in a public undertaking is suspended pending a
departmental disciplinary inquiry against him, subsistence allowance must be
paid to him. The Court has emphasised that a government servant does not have
his right to life and other fundamental rights.
However, if a person is deprived of
such a right according to procedure established by law which must be fair, just
and reasonable and in the larger interest of people, the plea of deprivation of
the right to livelihood under Article 21 is unsustainable.
ARTICLE 21-A
(The State shall provide free and
compulsory education to all children of the age of six to fourteen years in
such manner as the State may, by law, determine. Insertion of education as a FR
- 86th Am, 2002)
“Education is a human right with
immense power to transform. On its foundation rest the cornerstones of freedom,
democracy and sustainable human development”
~ Kofi Annan
EDUCATION is a key to development of
humanity. Future of any country depends on the nature of education system of
the country. Though members of constituent assembly knew the importance of
universal education but even then, due to paucity of resources they could not
provide it as a fundamental right, but it was mentioned in Directive Principles
of State Policy. Subsequently, the Supreme Court of India Court affirmed the
fundamental right to education in two landmark cases, Mohini Jain v State of Karnataka,1992 - SC held, “Right to
education is the essence of the right to life and directly flow and interlinked
with it, and life living with dignity can only be assured when there is a
significant role of education”. Case did not specify age limit for this right
to be exercised and Unni Krishnan J.P. v State of Andhra Pradesh,1993
- Court held “Right to education means citizen has the right to call up the
state to provide the facilities of education to them in according to the
financial capacity”. “Thus it is well observed by the decisions of this Court
that the provisions of Part III and Part IV are complementary and supplementary
in nature to each ot her and fundamental right means to achieve the goal
inculcate in Part IV of Indian constitution, It is also observed that the
fundamental rights should be established in the light of the directive principles”.
This case specified age upto 14 years
In Bandhua Mukti Morcha, etc v. Union of India- Court held that “It
would be therefore the necessary duty of the State to ensure the facilities and
opportunity to children enjoined under article 39(e), 39 (f) of the
Constitution and to prevent exploitation of their childhood due to extreme
poverty and notion.”
In December 2002, the Constitution
(Eighty-Sixth Amendment) Act was passed, entrenching the right to education in
Article 21A which reads: ‘The State shall provide free and compulsory education
to all children of the age of six to fourteen years in such manner as the State
may, by law, determine.’ Article 21A is in Part III of the Constitution and
therefore the right to education is now considered a ‘fundamental right’ under
the Constitution. Article 21A contemplated enabling legislation. 86th
constitutional amendment act, 2002 brings three new changes in our
constitution:
a)
Insertion
of new Article i.e, 21A in part III of the Indian constitution, which provides
that every child has the right to free and compulsory education of equitable
quality and subject to some norms and standards.
b)
Bring
alteration and modification in Article 45 and substituted as the State shall
endeavour to assure early childhood care and free and compulsory education for
all children until they complete the age of six years.
c)
Adding
the new clause, (K) under Article 51A, the result of this new fundamental duty
is added which states that whosoever is a parent or guardian has a duty to
furnish opportunities for education to his child or, as the case may be, ward
between the age group of six to fourteen years.
In the matter of Avinash Mehrotra v
Union of India,2009 the Supreme Court of India interpreted the right to
education to include the right to the provision of a safe environment in
schools, and imposed an obligation on schools to comply with certain fire
safety precautions which were detailed in the judgment. This decision provided
that the State’s duty cannot be discharged by the provision of unsafe schools.
The State must ensure that children suffer no harm in exercising their
fundamental right to education and, accordingly, must ensure that schools
provide safe facilities as part of a compulsory education.
Judiciary or parliament have clearly
explained the nature of this newly created fundamental right especially with
reference to its possible clash with already existed fundamental right of
minorities to establish and administer educational institutions of their
choice. Supreme Court has got several occasions to discuss the nature of rights
provided by article 30 (1), such as in Re Kerala Education Bill, Xavier College v. State of Gujarat,
Stephen’s College v. University of Delhi, T.M.A. Pai Foundation v. State of
Karnataka. But every time the issue was related only to the extent to which
various government regulations may penetrate in to the right to ‘administer’
minority educational institutions; even in Pramati Educational and Cultural Trust v. Union of India,2014, constitutional
bench of apex court concentrated only on the question that whether aided or
unaided minority education institutions are under obligation to provide “free”
and compulsory education to “all”.
Conclusion
The drafters of the Indian
Constitution have drafted this article in such a way that neither it is made
any provision compulsory nor makes any individual free from fundamental duties
that must be followed by every citizen of the country. This article has observed
so intensely the socio-economic set-up of the countries that no rights or
duties will be omitted. Possible this is the most unique feature of our
constitution that makes it different from the constitutions of the rest of the
world.
Article Information
ARTICLE 21 - THE CROWN OF INDIAN CONSTITUTION
Authors: KUMAR KANISHK
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/27
- Issue 7
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